Judge Orders Prosecutors to Produce Binder

By Walter F. Roche Jr.

A federal judge has ordered prosecutors to turn over a binder full of exhibits that has become a point of heated dispute in the aftermath of the criminal trial of a one time drug company executive.
In a two-page order dated Tuesday, U.S. District Judge Richard G. Stearns sitting in Boston, Mass. ordered federal prosecutors to turn over to him a binder full of exhibits and a PowerPoint presentation used in the recent trial of Barry J. Cadden.
Though Stearns had previously stated that he was certain the binder had not been provided to the jury during its deliberations, he said in his latest ruling that it was quite possible that the binder did find its way into the jury room.
"If there is any possibility (and now it appears that there is a real one)  that the binder was submitted to the jury, there is no reason that it should not be included in the trial record," Stearns wrote
The 12-member jury found Cadden guilty of 57 counts of racketeering and mail fraud but cleared him of 25 counts of second degree murder.
The dispute about the binder arose following the jury verdict when Cadden's lawyers filed a motion seeking either acquittal or a new trial. His lawyers also demanded that the binder be made part of the record for appeal purposes.
Stearns noted that federal prosecutors in responding to Cadden's motion on the binder disclosed that the binder was provided to the courtroom clerk "during the customary post-trial exhibit review, but that Cadden's counsel did not object to its inclusion in the jury materials."
In ordering prosecutors to turn over the binder, Stearns wrote, "there is no reason to keep secret something that was used (effectively in the court's judgment) in open court. Transparency is the best antidote for unwonted suspicion."
Cadden's lawyers have argued that the binder contained materials favorable to the prosecution case and did not include rebuttal material.
Stearns order requires prosecutors to turn over the binder by Friday. They also must file a copy of a PowerPoint presentation that was used by federal prosecutors in closing arguments.
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